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CONSTITUTIONAL COURT OF SOUTH AFRICA Case …

CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 46/12 [2013] ZACC 3 In the matter between: mmuthi kgosietsile PILANE first Applicant RAMOSHIBIDU REUBEN DINTWE Second Applicant and NYALALA JOHN MOLEFE PILANE first Respondent THE TRADITIONAL COUNCIL OF Second Respondent THE BAKGATLA-BA-KGAFELA TRADITIONAL COMMUNITY Heard on : 13 September 2012 Decided on : 28 February 2013 JUDGMENT SKWEYIYA J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Van der Westhuizen J and Zondo J concurring): SKWEYIYA J 2 [1] We are seized of an application for leave to appeal against the decision of Landman J, sitting in the North West High COURT , Mafikeng (High COURT ).

CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 46/12 [2013] ZACC 3 In the matter between: MMUTHI KGOSIETSILE PILANE First Applicant RAMOSHIBIDU REUBEN DINTWE Second Applicant

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Transcription of CONSTITUTIONAL COURT OF SOUTH AFRICA Case …

1 CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 46/12 [2013] ZACC 3 In the matter between: mmuthi kgosietsile PILANE first Applicant RAMOSHIBIDU REUBEN DINTWE Second Applicant and NYALALA JOHN MOLEFE PILANE first Respondent THE TRADITIONAL COUNCIL OF Second Respondent THE BAKGATLA-BA-KGAFELA TRADITIONAL COMMUNITY Heard on : 13 September 2012 Decided on : 28 February 2013 JUDGMENT SKWEYIYA J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Van der Westhuizen J and Zondo J concurring): SKWEYIYA J 2 [1] We are seized of an application for leave to appeal against the decision of Landman J, sitting in the North West High COURT , Mafikeng (High COURT ).

2 The High COURT granted three interdicts, restraining the applicants from: convening any unauthorised meetings under certain auspices; acting in a manner contrary to applicable statutory and customary law; and holding themselves out as a traditional authority using specified names and cognate titles. For determination is the appropriateness of these three interdicts. I refer to the parties as they are in this COURT . The parties [2] The first and second applicants are Mr mmuthi kgosietsile Pilane and Mr Ramoshibidu Reuben Dintwe, respectively. The applicants are residents of the Motlhabe village, one of 32 villages that comprise the Bakgatla-Ba-Kgafela Traditional Community (Traditional Community), located in the Pilanesberg area of the North West The applicants have for a number of years been dissatisfied with the administration of their village by the official governance structures within the Traditional Community.

3 The applicants are leaders of a group that desires secession of the Motlhabe village from the Traditional Community. [3] The first respondent is Mr Nyalala John Molefe Pilane, the senior traditional leader or Kgosi of the Traditional Community. The second respondent is the Traditional 1 The North West Province is one of nine provinces in the Republic, established under section 103 of the Constitution. Adjacent to the North West Province is the sovereign state of Botswana. SKWEYIYA J 3 Council of the Traditional Community (Traditional Council).

4 The respondents are the officially recognised leaders of the Traditional Community in terms of sections 2(1)-(2) and 11 of the Traditional Leadership and Governance Framework Act2 (Framework Act), read with sections 3 and 13 of the North West Traditional Leadership Governance Act3 (North West Act).4 [4] It is common cause that the applicants have not been recognised as traditional leaders by the Premier of the North West Province, nor are the villagers of Motlhabe recognised as a traditional community, distinct from the Bakgatla-Ba-Kgafela Traditional Community.

5 Factual background [5] Although all the villages that make up the Traditional Community are situated in SOUTH AFRICA , the Traditional Community recognises as their Kgosikgolo5 a traditional leader who lives in Mochudi, His deputy, Mr Nyalala John Molefe Pilane, the first respondent, administers the affairs of the Traditional Community in SOUTH AFRICA and is based at Moruleng, North West Province, which is also the headquarters of the 2 41 of 2003. 3 2 of 2005. 4 See below n 25 and n 26 for the recognition provisions under the Framework Act and North West Act respectively.

6 5 The North West Act does not define the term Kgosikgolo . Translated from the Setswana language, it means great chief. The Kgosikgolo of the Traditional Community is therefore its highest ranking traditional leader. It is unnecessary to determine whether the Kgosikgolo is recognised under SOUTH African legislation. 6 Historically, the Bakgatla-Ba-Kgafela resided as one tribe based in Saulspoort. A section of Bakgatla-Ba-Kgafela then relocated further west and settled in Mochudi, Botswana. The two sections of the Bakgatla-Ba-Kgafela, however, remain closely connected.

7 SKWEYIYA J 4 Traditional Council. There are headmen or dikgosana and sub-councils assisting the Kgosi and the Traditional Council with the administration of traditional affairs at village level. [6] The applicants and other members of the Motlhabe village have been dissatisfied for several years with the alleged mismanagement of the affairs of the Traditional Community. They describe their village as poor and under-developed. Their dissatisfaction springs from the alleged misallocation of resources amongst the villages comprising the Traditional Community.

8 The resources of the Traditional Community include those derived from platinum mining and the Sun City The applicants allege that these resources do not reach the Motlhabe village but are used for the benefit of those loyal to the Traditional Council and the Kgosi. [7] There is also a longstanding leadership dispute, in which the first applicant claims to be the headman of the Motlhabe village, but has been denied official recognition under the relevant statutes. Rather, Mr Tlhabane Pilane, who is not a party to these proceedings, is the officially recognised Kgosana or headman of the Motlhabe village.

9 The applicants complain that Mr Tlhabane Pilane s leadership, firstly, does not reflect the true leadership position under customary law. Secondly, in spite of his officially recognised position, he does not attend to governance issues in the Motlhabe village 7 The Sun City Resort is a luxury leisure resort located in the North West Province. It was established in what was then the homeland of Bophuthatswana, where the Resort offered gambling facilities which were not permitted in apartheid SOUTH AFRICA . SKWEYIYA J 5 through, among other things, his failure to call meetings to discuss community issues as required by custom.

10 The applicants have made several unsuccessful attempts to resolve their grievances by appealing to recognised statutory structures with jurisdiction over their village. [8] On 20 July 2009, a letter was addressed to the Traditional Council advising that the Bakgatla-Ba-Kautlwale Pilane Motlhabe Tribal Authority had resolved that they were an Independent Tribe and would, effective from 1 July 2009, no longer fall under the jurisdiction of the Traditional Council. The first applicant signed the letter as chairperson of the Bakgatla-Ba-Kautlwale Pilane Motlhabe Tribal Authority.


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